Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Wednesday, October 10, 2018

People v. Guiterrez (Cal. Ct. App. - Oct. 10, 2018)

I initially thought that this was a case the California Supreme Court might want to take up, but as I get older -- it's now a couple hours since I read it -- I'm starting to think otherwise. Maybe this is instead one of those rare cases where the Court of Appeal refuses to follow what a higher tribunal has said and yet we should actually let the thing stand.

Justice Ramirez explains at length why the defendant here was permissibly impeached by the facts of his prior felony conviction; namely, the fact that he had previously been convicted of driving a stolen vehicle. That was relevant to impeach his testimony, in his present trial for carjacking, that the only thing he did was "ask" the purported victim to borrow his car. You can be impeached by a prior felony conviction, after all.

But there's one big problem with this holding: a California Supreme Court case that's not even two years old that squarely says: "Under California law, the right to cross-examine
or impeach the credibility of a witness concerning a felony conviction does not extend to
the facts underlying the offense. [Citations.]” People v. Casares
(2016) 62 Cal.4th 808, 830. Under that principle, you're not allowed to adduce the facts; only the conviction itself. Directly contrary to the Court of Appeal's holding here.

Justice Ramirez says that statement in Casares was dicta. And that's perhaps right. Nonetheless, we regularly follow dicta from the Supreme Court. Because when the Supreme Court says that the law is X, rarely does the Court of Appeal properly hold that that law is actually Y, not X. So it's a bold move to say that the California Supreme Court said something that was (1) wrong, that (2) we're going to refuse to follow it because it's dicta. To be clear: The Court of Appeal has the power to do that, if it's indeed dicta. But my general view in such cases is that the California Supreme Court will likely want to grant review in such cases. And either (1) make it clear that the law is indeed X, not Y, and that the Court of Appeal was wrong -- and the California Supreme Court right -- in a new holding that is unambiguously not dicta, or (2) admit that it made a mistake and in fact change the law. That way, other lower court tribunals won't be led astray by the relevant dicta, which the Supreme Court will (upon granting review) now have an opportunity to clarify.

That was my initial thought about this case. That Judge Ramirez may well be right. But that the California Supreme Court should nonetheless grant review. Because it's for that tribunal to say that the Supreme Court got it wrong, not the Court of Appeal.

I still somewhat hold to that view. Somewhat.

But upon reflection, maybe it might also be fine just to leave things be.

The prior California Supreme Court case did indeed say what it said. And Judge Ramirez does a good job explaining why that statement is purportedly wrong. At least these days. Maybe back in the old days you couldn't adduce the underlying facts of the conviction, and maybe in that case the facts were irrelevant, but the law changed over time, and in this case, arguably, the underlying facts of the conviction are indeed relevant. Also, although Justice Ramirez doesn't have the heart to say so, the stark reality is that the statement from Casares at issue was not only probably dicta, but it was also buried deep in a hugely lengthy death penalty case -- a tiny little subissue of a larger whole. If the author of that opinion (Justice Werdegar)